Justice and security bill: section 13 is an affront

There is much to be concerned about in the justice and security bill, but keep reading to the end and you will find one of the most worrying provisions: section 13. It is a little technical, and doesn't have the "big bang" political impact of the closed materials procedures in the other parts of the bill, but if it passes as drafted section 13 will devastate attempts to discover just how mixed up the UK is in the darkest parts of the "war on terror".

The technical part: Norwich Pharmacal proceedings

Section 13 has a limited scope: it is applicable to civil proceedings where someone seeks the disclosure of information from another on the basis that a third party may have engaged in wrongdoing in which the person from whom disclosure is sought was somehow involved, and the information to be disclosed is reasonably necessary either to secure redress or to build a defence.

These are known as "Norwich Pharmacal proceedings".The purpose of section 13 is unquestionably to ensure that orders of this kind are frustrated almost beyond usefulness in the context of counter-terrorism accountability.

Norwich Pharmacal orders have the potential to be particularly useful in cases where third parties might have been involved (even innocently) in especially invidious activities, the full extent of which we are anxious to discover. It was the kind of order sought by Binyam Mohammed, for example, and has a potentially broad scope. Take a scenario where a logistics company provided services to a civil aviation company whose aircraft is suspected of involvement in extraordinary rendition.

One way of trying to expose the rendition and to achieve redress of some kind as a result might involve an attempt to secure a Norwich Pharmacal order against the logistics company. This would be useful to establish the rendition as a matter of fact, and perhaps also to discover evidence that could facilitate legal accountability for both state and private actors involved. This is the kind of case to which section 13 would apply.

So what does the section do?

It provides that if the information sought is "sensitive information" no court can force its disclosure. Sensitive information is defined in breathtakingly broad terms. Any information that is obtained from, held by or on behalf of an intelligence service (not only a UK intelligence service, by the way), derived from information held by an intelligence service, or in any way "relating to an intelligence service" is deemed sensitive and therefore not capable of disclosure.

Furthermore, other information can certified as sensitive information by the secretary of state where he considers that it would be damaging to national security or to the UK's international relations for disclosure to be made not only as to the information itself but even as to whether the information exists or is in the possession of the party against whom an order is sought.

It is true that the certification is subject to review, and it is quite possible that the courts would impose a demanding standard on the government to justify any decision ruling that certain information is sensitive, but that notwithstanding, section 13 is difficult to describe as anything but an affront. Its purpose is unquestioningly to ensure yet another avenue towards discovering the depth and breadth of the UK's involvement in what might charitably be called unsavoury activities is blocked.

Even if the certification process - itself a stunning provision of quasi-judicial power to a government minister - were to disappear in the legislative process (and I don't believe it will), the remainder of section 13 is still a matter of extreme concern.

Accountability and oversight

From a justice perspective, there is little point in developing and putting in place a new oversight mechanism for the security and intelligence services as part I of the bill does and then dismantling a key judicial pathway towards legal accountability. That leaves us overly reliant on the good offices of the intelligence services; too trusting in their commitment to parliamentary oversight.

Furthermore, it makes oversight a general matter; one that is almost impossible to harden into accountability for wrongs done to individuals, even where those wrongs breach fundamental principles of the modern democratic state such as the prohibition on torture. In the green paper we were told that in trying to "resolve" the apparent problem with Norwich Pharmacal orders, the government's "objective [was] to ensure that individuals have proper access to the courts … and that … critical national security partnerships are protected".

The UK's partner intelligence services will certainly be pleased, but it is difficult to see how section 13 secures any kind of meaningful justice for individuals.